Voting System Failures: A Database Solution

Voting systems fail in a particular county in one election, and then again later, under similar circumstances, but in a different locale. These repeated failures disenfranchise voters and damage public confidence in the electoral system. This report calls for a regulatory clearinghouse &mdash; a national database, accessible by election officials and others, that identifies voting system malfunctions.

Executive Summary

Failed voting machines, frustrated voters and lost votes: these have been a constant in news reports following every recent major election cycle. That should not be surprising. The voting systems1 used in the United States today are complicated machines; each runs on tens of thousands of lines of software code. As with automobiles and airplanes, automatic garage door openers and lawnmowers, occasional malfunctions are inevitable – even after rigorous product testing.

When it comes to system failures, however, voting machines are different from automobiles and airplanes, and other products, in at least one important respect: for the vast majority of voting systems in use today, (1) manufacturers are not required to report malfunctions to any government agency, and (2) there is no agency that either investigates such alleged failures or alerts election officials and the general public to possible problems (let alone requires voting system manufacturers to fix such problems).

As this report demonstrates, the consequence of this lack of oversight is predictable. Voting systems fail in a particular county in one election, and then again later, under similar circumstances, but in a different locale. These repeated failures disenfranchise voters and damage public confidence in the electoral system.

The Brennan Center reviewed hundreds of reports of problems with voting systems in the last eight years, and closely studied fourteen of them. Our study shows that election officials and the public are often completely reliant on the private companies that sell and service this voting equipment and related service contracts to voluntarily keep them aware of potential problems with those systems. As one election official we interviewed noted, “vendors are in the business of selling machines, and often don’t have an incentive” to inform present and future customers of certain problems with their systems.

The core thesis of this report is simple: we need a new and better regulatory structure to ensure that voting system defects are caught early, officials in affected jurisdictions are notified immediately, and action is taken to make certain that they will be corrected for all such systems, wherever they are used in the United States.

Based on our review of regulatory schemes in other industries, we are convinced that the focal point for this new regulatory system must be a clearinghouse – a national database, accessible by election officials and others, that identifies voting system malfunctions that are reported by voting system vendors or election officials. If this database is going to have any real benefit, voting system vendors must be required to report all known malfunctions and election officials must have full access to the database.

The Election Assistance Commission (EAC), the relatively new federal agency charged with the task of creating a testing program for new voting system has, within its limited federal mandate, made great strides in the last two years increasing quality control for some of the country’s newest voting systems. However, to fully address the problem of underreported and unaddressed voting system problems, the EAC or other federal agency should be given statutory authority and resources to fully implement the kind of database recommended in this report. Such a database would make our electoral system stronger. It would be easier for election officials and others to ensure that their equipment is as user-friendly and accurate as possible. It would also make voting machine vendors more accountable to public officials and taxpayers, incentivizing manufacturers to enhance internal controls. Given the billions of dollars spent by federal and local governments to purchase and maintain new voting equipment over the last several years, this is no small thing.

CORE FINDINGS

Three fundamental findings result from our study of past reported problems, review of current law and contracts for the use and regulation of voting systems, and interviews with election officials:

1. There is no central location where most election officials can find comprehensive information about problems discovered with their systems before each election.

• State and local election officials we interviewed tell us that they must rely almost exclusively on the voting system vendors for information about malfunctions, defects, vulnerabilities and other problems that the vendors have discovered, or that have occurred with their voting systems in other states.

• A change in election administrators can sometimes mean a loss of knowledge about all of the potential problems with a voting system as well as procedural safeguards necessary to prevent those problems.

• There are approximately 4,600 separate jurisdictions across the United States that administer elections.3

2. Vendors are frequently under no legal obligation to notify election officials or the public about problems with their systems.

• While purchase or service contracts sometimes bind election officials to inform vendors of malfunctions, vendors are not always similarly obligated to inform officials of problems reported to them.

• Voting system vendors are under no legal obligation to notify any federal agency of problems they discover with the vast majority of their systems in use in the United States today, despite the fact that hundreds of millions of federal dollars have been spent to purchase such equipment.

3. The same failures occur with the same machines, in one jurisdiction or another, election after election.

• Most of the election officials we interviewed in connection with our review of reported problems claimed to have had no prior warning of the issues we discuss. By contrast, in most cases, the vendors were (or should have been) aware of the problems – often because the same problem had been reported to them earlier by another election official.

• Frequently, these malfunctions – and their consequence, disenfranchisement – could have been avoided had election officials and/or public advocates known about earlier problems and had an opportunity to fix them.

CENTRAL RECOMMENDATION: CREATION OF A NATIONAL DATABASE FOR VOTING SYSTEM PROBLEMS

Given the nature and importance of voting systems to our democracy, we need a new regulatory structure to ensure that voting system defects are caught early, disclosed immediately, and corrected quickly and comprehensively. Accordingly, this new regulatory system must center around a mandatory national clearinghouse, administered by a federal agency empowered to investigate violations and enforce the law.

Based upon our interviews with election officials and regulatory experts, and our review of analogous regulatory structures in other important industries, we conclude that the clearinghouse must include four key elements to work effectively:

1. A Publicly Available, Searchable Centralized Database

Election officials, in particular, would benefit from a publicly available, searchable online database that includes official (i.e., election official-reported or vendor-reported) and unofficial (i.e., voter-reported) data regarding voting system failures, and vulnerabilities, and other reported problems and establishes criteria for the database’s contents and organization.

2. Vendor Reporting Requirements

Vendors must be required to notify the appropriate government agency of any known and suspected voting system failures and vulnerabilities, and other reported problems, including customer (i.e., election official) complaints, warranty claims, legal actions and/or actions taken by the vendor to satisfy a warranty or investigate a reported problem.

3. A Federal Agency with Investigatory Powers

The best way to ensure that vendors address potential problems in a timely manner is to empower the appropriate government agency to investigate all voting system failures and vulnerabilities listed on the database, grant the agency subpoena power to facilitate its investigations, and require vendors to, among other things, maintain records that may help the agency determine whether there are indeed voting system failures or vulnerabilities, and whether the vendor has taken appropriate action to address the failures or vulnerabilities.

4. Enforcement Mechanisms

The appropriate government agency must have the power to levy civil penalties on vendors who fail to meet the reporting requirement or to remedy failures or vulnerabilities with their voting systems.

We detail these recommendations more fully on pages 27 - 38 of this report.

ADDITIONAL RECOMMENDATIONS

While a national clearinghouse along the lines we suggest in this report is ultimately the best way to ensure that problems with machines are publicized and corrected throughout the country, there are important interim steps that county and state governments, in particular, can begin taking immediately to increase the chances that election officials are notified of problems with their voting systems and can avoid some of the kinds of problems detailed in this report:

1. Negotiate Better Contracts with Vendors

Provisions in many voting machine contracts make it much more difficult for election officials and the public to get detailed information about system problems reported in other parts of the country, or to hold vendors responsible for problems when something goes wrong. To increase voting system reliability and maximize vendor motivation to minimize the risk of such problems, counties and states should begin demanding certain key contract terms. Pages 39 - 40 of this report discusses these more fully.

This recommendation is particularly relevant to jurisdictions using Premier voting systems. ES&S recently purchased Premier, and pursuant to the proposed Final Judgment for the antitrust action brought by the Department of Justice in March 2010, customers using Premier equipment will have the option of choosing between ES&S and Dominion for future service of those machines.4 This will provide them with an opportunity to negotiate new contracts.

2. Implement Stronger State Regulation

The legislature in at least one state, California, has passed legislation requiring vendors selling systems within its borders to notify the Secretary of State and all local election officials using its systems of any “defect, fault or failure” within 30 days of discovery.5 As of the writing of this report, the legislation is currently awaiting a decision by the governor, who had vetoed an earlier version in 2009. In 2005, North Carolina passed a similar bill into law.6 The California model presents the best legislative attempt we have seen, to date, to address the problems we discuss in this report. We hope more states will adopt this model.

3. Create a Voluntary Database

The appropriate federal agency should create a searchable database to which election officials, vendors, and voters could voluntarily report problems. Absent action by the federal government, a non-governmental organization (like the National Association of Secretaries of State) or even a state government could create such a database.

There would be no way to force vendors to report to this database, or to provide election officials with whistleblower protections for making voluntary reports – two important suggestions for the mandatory clearinghouse detailed in this report – but it could still serve as a useful interim resource for election officials.

4. Pressure Vendors to Voluntarily Post Information on Their Own Sites This Year

One drawback of the three previous recommendations is that they probably cannot be implemented in time for this fall’s election. In contrast, vendors could create their own databases relatively quickly, significantly reducing the risk of embarrassing problems. Ideally, vendors would create a central, easily accessible and searchable site where election officials could review all previously issued product advisories, software patches and workarounds, election official complaints, warranty claims, and lawsuits about their systems (together with the result of any vendor investigation, explanations, and actions taken to address these complaints).

County and state officials can and should demand this voluntary action from vendors now, in time to make a difference for November’s election.

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About the Author

Lawrence Norden is Senior Counsel in the Brennan Center’s Democracy Program and director of the Brennan Center’s Voting Technology Project. He has authored several nationally recognized reports and articles related to voting rights, voting systems and election administration. In April 2009, Mr. Norden completed his duties as Chair of the Ohio Secretary of State’s bipartisan Election Summit and Conference, authoring a report that recommended several changes to Ohio’s election administration practices and laws; the report was endorsed by most of the State’s voting rights groups, as well as the bipartisan Ohio Association of Election Officials. Mr. Norden was the Keynote Speaker at the Sixth Annual Votobit International Conference on Electronic Voting (Buenos Aires, 2008), and the 2009 Electronic Voting Technology Workshop/Workshop on Trustworthy Elections (Montreal, 2009). In June 2009, he received the Usability Professional Association’s Usability In Civic Life Award for his “pioneering work to improve elections.” Mr. Norden is the lead author of the book The Machinery of Democracy: Protecting Elections in an Electronic World (Academy Chicago Press) and a contributor to the Encyclopedia of American Civil Liberties (Routledge 2007).